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of way wbich it could assign, the grant is void from in these eight cases without considering as against public policy.

the question whether the appeals or any of them W. U. Teleg. Co. v. Am. U. Teleg. Co. 65 Ga. should be dismissed because of the fact tbat the 160.

answers of the defendant are not under its cor

porate seal. Miller, J., delivered the opinion of the In the other two cases (those of Smith and court:

McIntoshļ, the appeals are from pro forma orThese ten cases were argued together, and as ders refusing to dissolve the iujunctions upon they present substantially the same questions, bills, answers and proof. In these cases the they will be disposed of in one opinion. They defendant corporation in its answers avers that are all bills filed by separate land owners in it is proceeding to construct its line of poles and Baltimore County seeking to enjoin the "Amer- wires along and on the right of way of the icap Telephone & Telegraph Company of Bal- Maryland Central Railway Company, under a timore City,” a corporation incorporated un contract with that company made on the 29th der the General Corporation Law of this state, of April, 1889, for the use and benefit of the from erecting telegraph poles, and constructing railway company in operating and running its a telegraph or telephone line of wires on and cars; that the railway company has the right over the lands of the several complainants. to place telegraph poles and wires, and tele. Eight of the appeals are from orders granting phone wires and poles, over and upon its right. preliminary injunctions upon the several bills. of way for the use and operation of its railroad, It is well settled that in deciding an appeal and as many as may be necessary for operating from such an order this court can look only to its road, and for the safety of the public who the case made by the bill, thougb the defend travel over the same, for the purpose of faciliapt is required to file an answer before he can tating the business of the road, and increasing appeal, and the answer must appear in the recits passenger travel and freight toppage; and ord. Blackburn v. Craufurd, 22 Md. 447. that the railway company could do this itself

The question then is, Does each of these or employ some other company to do it for it, eight several bills make out a case for the grant and the complainants have therefore no right ing of such an injunction?

to interfere, The bills all aver and charge in substance These answers disclose what is obviously the that the defendant Company bas recently de real controversy in all these cases. On the one posited large and heavy poles upon the lands side the land owners from whom the railroad of the complainants along the line of the Mary-company obtained the right of way for the land Central Railroad, and is engaged in set construction of its railroad insist that the conting up said poles, or is about to do so, without struction of this telegraph and telephone line their permission or consent; that the erection will impose an additional servitude or burden of these poles and the stringing of wires there on their lands for which they are entitled to on is injurious to their property and is an ap- compensation, and that the line cannot be conpropriation of private property for public use structed until the corporation or corporations without compensation or tender thereof to the undertaking its construction bave first comcomplainants, and that they are entitled to have plied with the requirement of the Constitution the defendant restrained and enjoined from in regard to taking private property for public erecting said poles and stringing wires thereon use. On the other hand the Telegraph & on and over their lands until it has acquired Telephone Company contends that it is conthe right to do so by condemnation of the lands structing this line upon the right of way of the for such use, or otherwise.

railroad company under a contract with that We bave no doubt as to the sufficiency of company for its use and to facilitate the operathese averments or of the jurisdiction of a court tion of its road, and to increase its business, of equity to grant an injurciion in such cases. and in this contention it is aided by the tailA corporation created for the purpose of trans-road company. The right to construct this. mitting messages by telegram or telepbone is, line has also been placed in argument, upon with respect to its right to construct its lines other grounds wbich will be policed hereafter. over private property, just as much subject to Before considering the facts we must ascerthe provisions of ari. 3, § 40, of the Constitu- tain the law applicable to such cases, and this tion as is a railroad or any corporation clothed is not altogether free from dilliculty. Not with the power of taking private property for many instances bave occurred in which land public use. Lewis, Em. Dom. $ 172; Mills, owners have asserted such claims, and the cases Em. Dom. S 21.

in which the precise question before us has This clause of the Constitution is too plain been raised are comparatively few. In the to admit of any doubt, and the averment that most recent text book on Ewinent Domain it the defendant is proceeding or threatens to pro- is said: “A line of telegraph on a railroad right ceed to construct its line of poles and wires on of way is an additioval burden unless conand over the complainants' land without their structed for the use of the railroad company in leave or license, and without paying or tender the operation of its road and dispatch of its ing to them compensation for the use of their business.” Lewis, Em. Dom. $ 141. lands for this purpose, is of itself enough. The In Mills, on Eminent Domain, $ 59, the aucourt could not properly refuse an injunction thor approvingly quotes part of the opinion of in the face of such averment. The nature of the court in W. U. Teleg. Co. v. Rich, 19 Kan. the damage complained of, whether irreparable 517. That case is also referred to ky Lewis, or not, has nothing to do with the question bas been strongly pressed upon our attention, wben thus presented. Western Maryland R. and therefore requires a careful examination. Co. v. Orings, 15 Md. 199.

It was a suit by a land owner against the WestWe shall therefore affirm the orders appealed lern Union Telegraph Company to recover damages for cutting dowu trees on his land. The burden. Of course if the trees were not upon trees were on or close to the right of way of the right of way, it is immaterial whether the the Atchison, Topeka & Sante Fé Railroad, defendant built the line alone, or jointly with and were cut down to make room for the tele- the railroad company, for, in the latter case, graphı poles and to prevent interference with either would be responsible for the entire damThe telegraph wires. The defendant sougbt to ages. We cannot, of course, pass upon this prove that i he telegraph line was built jointly question of fact, for we cannot tell wbat the by it ard the railroad company under an ar testimony, if admitted, would bave disclosed. rangement for its joint use by the two compa- It is enough that the testimony offered ought nies, and introduced a witness to prove tbat the to have been admitted, and then the jury in. line of telegraph was built jointly by the two structed that if the facts were as deferidant companies for the use of the railroad company sought to prove them to be, the defendant was in the moving of its trains and the transaction liable for only the damages caused by the adof its business, that it was part of and neces- ditional burden, if any, ils use of the telegraph sary to its business, and was built on and over cast upon the land." the right of way of the railroad company. We have thus quoted this opinion at length, The lower court rejected this testimony, and because it is a very clear statement of the law this ruling was held to be erroneous. This which we are willing to accept. It recognizes was the sole question decided and in decidivg the right of the land owner to compensation for it the court said: “A telegraph line, if not in every additional burden cast upon the land outdispensable to a railroad, tends so much to side the scope of the original easement, and facilitate its business, and to the speedy and that whether a given structure creates an addisafe running of its trains, that the railroad tional servitude is a question of fact, depending company has a right to build it, to use its right on the circumstances of each case to be deter. of way iberefor, and to remove all obstructions mined by the tribunal baving jurisdiction to thereon to its fullest and most uninterrupted try the same, and before which it is tried. We and beneficial use. Although it may have but cannot adopt the view taken by counsel for the an easement in the land, and that easement appellant that this question must in all cases limited to its use for railroad purposes, yet a be determined by the judgment and opinions telegraph is so convenient, if not indispeusable, of the railroad officials or employés. In a case that it may cut down every tree and bush on where the question was whether a certain the right of way if necessary for the most con- building was a necessary building within the stant and efficient use of a telegrapb live built terms of a railroad charter, that question was by it over and upon such right of way, just as determined by this count itself upon proof as to it may dig away a bill or fill up a ravine for the character of the building, its location and the sake of a water tank or a station-bouse. the purposes for which it was constructed and By so doing it gives the adjacent land owner used. Hamilton v. Annapolis & E. R. Co. 1 no claim for damages. Such use is contem- Md. 560. plated in the original condempation, and the We entertain no doubt whatever as to the damages resulting therefrom are part of the right of a railroad company to construct on damages included in the assessment thereof. and over its right of way a telegraph or teleIn short, the railroad company may use its pliore line, for its use in the operation of its right of way not merely for its track, but for road and dispatch of its business; and it may any other building or erection which reason. do this by itself, or may employ another comably tends to facilitate its business of transport-pany to do it, or may do it conjointly with ing freight and passengers, and by such use in another company. I, then, this line is in no manner transcends the purposes and extent process of construction, or is about to be conof the easement, or exposes itself to any claim structed over the right of way of this railway for additional damage to the original land company in good faith for the use and benefit owner. So tha if the railroad company bad of the latter in the operation of its road and to built this line by itself and independent of the facilitate its business, or is reasonably necesdefendant and in doing so had only cut down sary for that purpose, the land owners bave no trees upon its right of way, it is clear that the ground of complaint because such use of their plaintiff would have no cause of action there land is within the scope of the original easefor. Does the fact that it took a partner in the ment for which_they have already received construction and use of tbe telegraph expose it, compensation. But, on the other hand, if this or such partner, to any liability to the land is not the motive for its construction, and the owner for the full value of the trees cut down main object in constructing it is to establish an upon its right of way? We think pot. If the extensive line of telegraph and telephone comrailroad company could build by itself without munication through this and other States for liability, it did not assume liability by build- general commercial purposes, for the use and ing with another. Whatever it could do and benefit of the defendant, and such a line is not would have done for its own use and benefit, reasonably necessary for the purposes of the and was so done, was, so far as the land owner railroad, iben it will be a new easement and is concerned, damnum absque injuria, no mat- put a new and additional burden upon the land ter who bore the expense; or perhaps, more for which the owners are entitled to compensacorrectly, it was damages already paid for. tion. This question will be decided wben we We do not question that every additional bur. come to consider the facts; but we must first den cast upon the land outside of the purpose notice the other grounds upon which the right and scope of the original easement, no matter to construct this line is sought to be placed. in whose bebalf, gives the land owner new By an Act of Congress, approved July 14, claim for compensation. But such compensa. 1866, it is provided among other things that tion is limited to the extent of the additional lany telegraph company now organized, or which may hereafter be organized under the tional burden thereof cast upon his land arisen. laws of any State in the Union, shall have the We have always understood that the right of right to construct, maintain and operate lines way of a railroad chartered by and running of telegraph over and along any of the military through a State is the private property of the or posi-roads of the United States, which have railroad corporation, and that the land through been or may hereafter be declared such by Act which it runs, subject to the easement of the of Congress," provided such lines "sbali pot railroad, is the private property of the respecbe so constructed as to interfere with the ordi- tive land owners, and we cannot understand Dary travel” on such roads, and provided also bow Congress, by declaring such road to be a that before any telegraph company shall ex-"post-road,” can deprive either the railroad ercise any of the powers or privileges conferred corporation or the land owners of these property by this Act such company shall file its written rights, or how it can confiscate them for the acceptance with the postmaster general of the benefit of telegraph companies; nor do we think restrictions and obligations required by this it was the intention of Congress by these enactAct.” Congress afterwards, in 1872, declared ments to do any such thing.

Whatever may all the railroads in the country which are now be their effect in other respects, we think it or may hereafter be in operation to be “post- clear they are not susceptible of the construcroads." There is nothing in these records to tion, and have not the effect sought to be given sbow that the defendant has filed its acceptance them by counsel for the appellant. In our of the Act of 1866, but as this can readily be judgment they do not give a telegraph comdone it is proper we should give our views of pany, when it proceeds to construct its lines the construction and effect of these Statutes. over a railroad right of way, immunity from We cannot suppose it was the intention of Con- the restriction by which the Constitutions of all gress by these enactments (even if it bad the the States, as well as of the United States, have power to do so), to put the right of way of carefully protected the owners of private propevery railroad in the country at the mercy of erty when taken by the exercise of the power the ielegraph companies, and allow the latter of eminent domain. In our opioion, therefore, to use them for the construction of their lines these Acts give no aid to the defendant in rewithout making compensation to anyone there- gard to the question now before us; and much for. Such a construction was wholly repudi. less does the subsequent Act, approved June ated by Judge Drummond in the case of Allan. 23, 1879, which is also relied on. This latter tic & P. Teleg. Co. v. Chicago, R. 1. & P. R. Co. Act is the Appropriation Bill for the support 6 Biss. 158, and by Judge Harlan in Western of the army for the fiscal year ending June 30, Union Teleg. Co. v. American Union Teleg. Co. 1880, and in a paragraph making an appropri9 Biss. 72. In the latter case it is expressly ation for the cost of telegrams and for other said that under this Act the telegraph compa purposes a clause is interjected which declares pies must obtain the consent of the owners of that telegrams are authorized to be transmitted the right of way or condemn the same for tele. by railroad companies which may have telegraph purposes and make compensation there. graph lines and which shall have filed their for. We have not been able to discover that written acceptance" of the Act of 1866,"for the views of these judges on this point have the government and for the general public at ever been overruled by the supreme court in rates to be fixed by the government. It is obany of its numerous decisions on this Statute. vious this clause has no bearing on the question On the contrary, in Pensacola Teleg.Co. v. West- now under consideration. ern Union Teleg. Co., 96 U. S. 1 [24 L. ed. 7041, Again, it is contended that the defendant is that court said: “This Act gives no foreign empowered to construct this line by the statute corporation the right to enter upon private law of this state, and cannot be resirained from property without the consent of the owner, and doing so by injunction; but for any damage erect the necessary structures for its business: done to private property thereby the owners but it does provide tbat whenever the consent must seek redress by an action at law. For of the owner is obtained, no state legislation this position reference is made to the sections sball prevert the occupation of post-roads for of the Code relating to telegraph companics. telegraph purposes by such corporations as are Code, art. 23, $s 222-226. willing to avail themselves of its privileges;” All that need be said in regard to these secand again: “No question arises as to the au- tions is that, if they contain any provision authority of Congress to provide for the appropri- thorizing the construction of telegraph lines on ation of private property to the uses of the and over private property in the first instance, telegraph companies, for no such an attempt and then requiring the property owners to seek bas been made. The use of public properly compensation afterwards by an action at law alone is granted. If private property is re. for damages, it is in conflict with the constituquired, it must, so far as the present legislation tional provision referred to, wbich requires the is concerned, be obtained by private arrange- just compensation agreed upon or awarded by ment with its owner. No compulsory pro- a jury to be first paid “or tendered,” that is beceedings are authorized. State sovereignty fore the property is taken. This provision of under the Constitution is not interfered with the Constitution is of course controlling, and Oply national privileges are granted.”

that it applies to the case of property taken In all the cases in the supreme court where for the construction of telegraph lines, there telegraph companies haveconstructed their lines can, we think, be no reasonable doubt, for we on the right of way of railroad companies in the regard it as now well settled that use of propStates, they appear to have done so by consent erty for this purpose is a “public use." "A or under agreement with such companies, and telegraph or telephone line," says Lewis, "de. in none of them has the question as to the right signed for the service of the public and subject of the land owner to compensation for the addi- I to regulation by the Legislature, is a public use

It was

for wbich property may be taken." Lewis, sive use of said wire,” at which time Davis Em. Dom. $ 172.

agreed "to furnish another, or other wire or The term “public use" says Mills, “is flexible wires for such business." He was also to reand cannot be contined to the public use known ceive the entire receipts from “commercial at the time of the framing of the Constitution. business for five years, and to have the right to All improvements that may be made, if useful place on the roles, at bis own cost, as many to the pub may be encouraged by the exer- wires for telephone, telegraph or other pur cise of eminent domain. Any use of anything poses, as he may require,” provided he did not which will satisfy a reasonable demand for fa lover burden the poles, or render them unsafe cilities for transmission of intelligence or of for the wire or wires” of the company. commodities would be a public use.” Mills, also agreed that at stations where the company Em. Dom. $ 21.

bas po operators and Davis had an operator The good sense of this proposition commends or telephones,” the company shall have “free it to our approval and we adopt it. Casting an use of ihe same, or either of the same, for rail. additional burden for such a purpose, on land road purposes or business.” It was also agreed already subject to an easement, is just as much that the wine or wires designated as above for taking it for public use as was the taking the use of the company should connect not of it for the original easement; and as we only with its North Avenue station in Baltibave shown, courts of equity have in this State more, but with such city offices as Davis may jurisdiction to prevent by injunction the pros establishi

, be to deliver, free of charge, in the ecution of the work until the compensation is city, all messages relating to railroad business.” paid or tendered. The injunction does not, of The contract was to continue for ten years, course, prohibit the construction of the work with the privilege to the company of continu. but only suspends it till this provision of the ing it for another ten years, or of discontinuing Constitution has been complied with.

it at its election; but if discontinued at any time, We must now examine the facts disclosed by the company was bound to purchase the line of the records in these two cases, for the purpose poles, wires and instruments used for its rail. of deciding the question above stated.

road business at a valuation to be fixed by The Maryland Central Railway Company" | arbitrators. Finally it was agreed that the comis a recent successor to all the property, rights pany should bave the privilege, “at its own exand franchises of "the Baltimore & Delta Rail. pense, of placing an additional wire upon said road Company, a corporation formed under the poles for its own exclusive railroad business." Act of 1878, chap. 195, by the consolidation of With this line thus built by Davis, and with three other companies, the eldest of wbich was the single wire thereon, the railway company incorporated by the Act of 1868, chap. 314. It has managed the running of its trains, and con. bas also acquired the property and franchises ducted all the telegraphic communication necof “The Maryland Central Railroad Company,"essary for its business since the road was comwbich was incorporated by the Act of 1807, pleted to the present time. That line still excbap. 121. Its road is a single-track narrow. ists, is still in operation performing all the gauge railroad running through Baltimore and necessary work of the company, and bas, with Harford Counties from Baltimore City to the all its appurtenances and instruments, been asVillage of Delta, in Pennsylvania, close to the signed and transferred to the railway company Maryland line, distance of forty-five miles, by the contract recently made with the defend. wbich was not completed and open for traffic ant. There was and is no mechanical difficulty throughout its entire length until the 21st of whatever in putting on these poles as many January, 1884. Three grants of right of way wires as the company may ever need for its through complainants’lands were made in 1878 business purposes, and its financial inability to and 1979, and embrace strips of varying width, do so, or to employ telegraph operators at all one being sixty-six, one forty and the other its stations, bas nothing to do with the question thirty feet. All the grants express that the we are to decide. land is to be used for railroad purposes only,” | This was the state of things when the defend. and the company could have acquired it for no ant Company intervened. It took out its Mary: other purpose by condemnation.

land charter on the 19th of March, 1889, and At the time the road was completed it had a on the 19th of April following made the con. line of telegraph poles with one wire thereon, tract with the railway company. By this the which had been constructed by Augustus G. Davis contract is annulled, and the railway Davis under a contract with the company dated company grants to the defendant the rigbt, at the 8th of August, 1883. By this contract its own cost, “to erect, maintain and operate a Davis agreed to construct and maintain, at his telegraph and telephone line upou, over and own cost, a first-class telegraph line “along the along the line of railway of said railway com. right of way from Balumore to Delta," the pany between the City of Baltimore and the poles to be thirty five feet in height, and to Village of Delta, and along, upon and over one have thereon "for the exclusive use of the com- side solely and only of the right of way.”. By pany, one number nine galvanized wire," and the other clauses of this contract there is, so "to furnish one set of telegraph instruments at far as we can discover, after a careful examina. every railroad station on the line,” as the com- tion of them, not a single substantial privilege pang may direct, and where it may have a granted to the railway company which it did station agent or operator and a station house. not have under the Davis contract. The company, on its part, agreed, amorg other Shortly after the execution of this contract things, to permit its operators to iransact com- the defendant commenced placing on and erect. mercial telegraphic business on this line, “until ing along this right of way, for the purpose of such time as the business demands or necessi- constructing its line, pine and cedar poles tics" of the company “may require the exclu- / brought from Canada, which are long, heavy and large, varying in diameter from thirteen to to the same conclusion. Whether it be true or nineteen inches. These poles whenever put up not that a railroad can be better managed as to bave arms ten feet in length for the support of the running of its trains by the telephone than wires, and are notched for a number of other the telegraph, the Davis contract provided for similar arms. It is obvious that a structure of the use of telephones, and gave the railway this character, and thus equipped, is not being company the free use of them whenever they put up in order to subserve or promote the were used by Davis. Again, assuming that business purposes of this railroad, and in no this telegraph and telephone line would be a sense of ihe term can it be regarded as peces convenience to the railway company and save sary, or reasonably necessary, therefor.

it some expense, still convenience and saving The bills charge that the corporate body of expense do not meet the requirements of the called “The American Telegraph & Telephone law, as we have stated it, on the question beCompany” is organized for the purpose of es. i fore us. tablishing lines of communication at long dis- We have thus considered the facts and cirtances by telegraph and telephone, and proposes cumstances of these cases, and find and decide to do business between the City of New York that the construction of this new and additional and cities south of it. This charge is not denied line will impose a new servitude on the land of by the answers, and that such is the design of these complainants, and shall therefore affirm ibose engaged in the prosecution of this enter- the orders appealed from. prise, and that the line over the right of way Several other questions are presented by the of this railroad is to be but a link in the chuio briefs of counsel and bave been to some extent of such communication, we bave no doubt. argued by counsel, but the views we have exThis is shown by the character of the structure pressed render it unnecessary to notice them at proposed to be built, by the testimony showing length. It is proper, however, to say that if who are the corporators in the Maryland char- any of the poles of this line, as erected, infringe ter, and who own its stock, as well as by the upon the lands of the complainants outside of terms of the contract itself made with the rail. the railroad right of way, or if any of them way company, and still more conclusively by have been guyed or stayed by wires fastened to the fact, testified to by one of the witnesses, trees standing on such land out of such right tbat tbe lipe bas left the railroad at Forrest Hill of way, tbese facts of themselves would entitle before reaching its Delta terminus, and is being the complainants to an injunction. constructed towards another town in Pennsyl. Oriler's affirmed and causes remanded. vania. We think it clear that po intelligent Stone, J., dissents. person can read these records without coming Petition for reargument denied.

RHODE ISLAND SUPREME COURT.

Phillip 8. TAGGART et al.

held to be prohibited by a subsequent section of 0.

the charter providing that the company shall not NEWPORT STREET R. CO.

incumber any portion of the streets not occupied

by its tracks, especially where such provision is (....R. I.....)

copied from the charters of companies authorized

to use horse power only. 1. A provision in the charter of a street 5. The use of electricity by a street railrailway company requiring publica

way company as a motive power will not render tion of notice to abutters upon streets in its use of the street an imposition of an addiwhich it proposes to lay its tracks a certain time tional servitude thereon which will require the before their location does not require the inser

making of additional compensation therefor to tion in the notice of a designation of the motive the owner of the fee, where it does not appear power intended to be used; especially where an. that the occupation of the street is any more exother section of the charter requires the use of clusive than though the road was operated by such motive power as the city council shall di

horse power. rect.

6. The court will not take judicial no2. A location of the tracks of a street rail

tice that electricity, as used by a street railway way company under authority of a city ordinance

company for the propulsion of its cars, is danpermitting the use of horse power only is not af

gerous. fected by the amendment of the ordinance so as

(January 18, 1890.) to permit the use of electricity and the acceptance by the company of such amendment.

maintenance by defendant of poles and way company to use horse or other wires upon the public streets of the City of power does not mean other animal power, but Newport for the purpose of propelling its cars will permit the use of electricity as a motive

by electricity. Dismissed. power. 4. Where authority is given to a street with the corporate name of the Newport Horse

Defendant was incorporated April 24, 1895, railway company by one section of its charter to

Railroad Company use electricity as a motive power, and such au.

Its charter coutained the following provisthority is broad enough to permit its use by

ions: means of any system of application which is approved as suitable, and the only successful way

"Sec. 2. Notice to abutters on streets or of using such power is to place poles upon the highways in which it may be proposed to lay sidewalks, the placing of poles there will not be the tracks of said corporation shall be given by

See also 12 L. R. A. 652 : 26 L. R. A. 281; 35 L. R. A. 859.

3. A charter permitting a street rail. BILL in equity to enjoin the erection and

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